AMS v AIF

High Court of Australia|1997-06-19|Before: Gleeson CJ, Callinan JJ, Gummow JJ

For the reasons I expressed in Kruger v The Commonwealth , I am of the view that, so far as concerns implied freedom, there is but one test, namely, whether the purpose of the law is to restrict the freedom in question. If it is, the law is invalid. However the purpose of a law is to be determined by its subject matter, its operation and effect. Thus, as I said in Kruger , "a law with respect to some subject matter unconnected with [the freedom] which only incidentally impinges on [it] is not to be taken to be a law for the purpose of restricting that freedom if it is reasonably appropriate and adapted or, which is the same thing, proportionate to some legitimate purpose connected with that other subject matter" [71] .

The test for infringement of the Constitution's explicit guarantee of freedom is, however, more stringent than for an implied freedom. That is because an implied freedom must be read in the context of those specific provisions of the Constitution which contemplate legislation impacting on it. No such consideration arises in relation to the freedom guaranteed by s 92. Thus I adhere to the view I expressed in Cunliffe v The Commonwealth [72] that the test of infringement of the freedom of intercourse guaranteed by s 92 is as stated by Deane J in that case, namely, that "a law which incidentally and non-discriminately affects interstate intercourse in the course of regulating some general activity, such as the carrying on of a profession, business or commercial activity, will not contravene s 92 if its incidental effect on interstate intercourse does not go beyond what is necessary or appropriate and adapted for the preservation of an ordered society or the protection or vindication of the legitimate claims of individuals in such a society" [73] .

(1994) 182 CLR 272 at 392. 2. Cunliffe (1994) 182 CLR 272 at 346

The 1975 WA Act was not concerned with interstate intercourse, as such, and the effect, if any, that it had on it was only incidental. Moreover, the welfare jurisdiction of the Family Court of Western Australia and its powers in that regard were confined, as I have already indicated, to orders necessary to avert a risk to the welfare of a child. On that basis neither s 27(5) nor s 36(a) of the 1975 WA Act infringed s 92.

However, were ss 27(5) and 36(a) of the 1975 WA Act to be construed more widely than indicated, they would, in my view, be invalid to the extent of that wider construction, whether by application of the test identified by Deane J in Cunliffe or the less stringent test applicable in the case of an implied freedom. So far as concerns the more stringent test, there is a real question whether a law which operates to permit restriction of movement on the part of a custodial parent, usually the mother, could be said to be non-discriminatory. However, it is not necessary to explore that issue. It is sufficient to note that there is a difference between what is necessary to protect the welfare of a child or, which is the same thing, to avert a risk of harm to his or her wellbeing, and an order designed to achieve what is thought to be in his or her best interests. An order necessary to protect his or her welfare would not infringe s 92, notwithstanding that it incidentally affected interstate intercourse. On the other hand, an order designed to achieve what is thought to be in his or her best interests cannot, in any sense, be described as necessary.

So far as concerns the less stringent test, it is necessary to identify the purpose of the 1975 WA Act in its operation with respect to ex-nuptial children. In this regard it is necessary to note that the jurisdiction and powers of any court with respect to children must be exercised within the limits of what is practicable, not what is desirable. That consideration directs that the purpose of the 1975 WA Act, in its operation with respect to children, be identified as that of securing their welfare, rather than promoting it. A power to restrain a parent from moving interstate, if that is necessary to avert a risk to the welfare of a child, is one that may be fairly considered appropriate and adapted to securing the child's welfare. The same cannot be said of a power to restrain a parent from exercising his or her constitutional freedom to move interstate, if that would best promote his or her welfare.

So far as concerns the power conferred by s 28A of the 1975 WA Act to grant injunctions, that power was expressed as a power to grant injunctions "in any case in which it appears just or convenient to do so". It may well be necessary for that provision to be read down in its application to orders restraining persons from leaving Western Australia if it is to be held valid. However, that is not a matter that need be decided in this case.

It is convenient to note two incidental matters in relation to these appeals. The first is that once a question arose in the Family Court of Western Australia as to whether the mother was to be restrained from leaving the Perth Metropolitan area, a question necessarily arose as to the operation of s 92 of the Constitution. And, so far as the restraint related to her return to Darwin, a question also arose as to the operation of s 109 of the Constitution. They were questions arising under the Constitution and, thus, the Family Court of Western Australia was thereafter exercising federal jurisdiction. And it may also be that the applications for custody and guardianship were properly to be seen, not simply as applications under the 1975 WA Act, but as matters arising under that Act and, also, under s 63F(1) of the Commonwealth Act. That is a question that may require consideration if the matter proceeds to a rehearing.

The second incidental matter is, as other members of the Court point out, that, if the matter proceeds to a rehearing, the issues between the parties will fall to be resolved by the law as it now stands.

Both appeals should be allowed and the orders of the Full Court set aside. As the residence order under-pinned the custody and access orders made at first instance and may well have had a bearing on the order for joint guardianship, those orders must be set aside and the entire matter remitted to the Family Court of Western Australia for retrial. Each party should pay his and her own costs at first instance, in the Full Court and in this Court.

These two appeals arise from orders of the Full Court of the Supreme Court of Western Australia [74] . They concern what the applicable legislation then called the "custody" and "guardianship" of an ex-nuptial child in the context of a proposal by the custodial parent to relocate her residence.

AMS (the father) appeals against the orders in so far as they disturbed a determination of the primary judge that the parties should have joint guardianship of the child, and substituted an order that AIF (the mother) should have sole guardianship as well as sole custody. By her appeal, the mother contends that the Full Court erred in refusing to set aside an injunction which restrains her from changing the child's principal place of residence from the Perth metropolitan area. In this Court, both parties raised for the first time constitutional arguments which were said to require correction of the orders made below. In addition, both parties submitted that the orders were arrived at by a misapplication of the applicable law and by the adoption of an incorrect approach to the discretions which were invoked.

Behind the constitutional and other legal arguments of the parties lies a difficult problem. It is one which arises in every jurisdiction where relocation cases have been considered [75] . The problem stems from important values which the law upholds and which sometimes come into conflict. On the one hand, the best interests of a child ordinarily favour its right to know, and to have regular contact with, each parent whilst it is growing up. On the other hand, such rights exist in a society whose members enjoy a high measure of freedom of movement, which is not lost by reason only of the responsibilities which go with custody and guardianship of a child.

See, eg, Poel v Poel [1970] 1 WLR 1469sub nom P v P [1970] 3 All ER 659 Gordon v Goertz (1996) 134 DLR(4th) 321; Stadniczenko v Stadniczenko [1995] NZFLR 493

This case involves the working out of these conflicting interests. It does so in a context which is complicated by bifurcated responsibilities for family law arising under the Australian Constitution and from the arrangements, peculiar to Western Australia [76] , whereby federal and non-federal jurisdiction in family law matters are administered by the Family Court of Western Australia [77] . In that State alone, the regime of federal law, applicable to ex-nuptial children in other jurisdictions of the Commonwealth, does not apply [78] .

The Parliament of Western Australia has not referred relevant legislative powers to the Parliament of the Commonwealth. See Family Law Act 1975 Cth (FLA 1975), s 60E(2). 2. Family Court Act 1975 WA (FCA 1975), s 27; cf Family Court Act 1997 WA (FCA 1997), s 35. 3. FLA 1975, s 60E. By s 60E(1) the Part extends to New South Wales, Victoria, South Australia and Tasmania. By s 60E(2) the Part now also extends to Queensland. By s 60E(3) it applies in and in relation to the Territories. Only Western Australia has its own legislative regime.

Whilst living in a university college in Perth, the father and the mother (as I shall describe them, to avoid confusion from the two appeals) formed, but then broke off, a relationship. When the mother discovered that she was pregnant, the couple resumed their relationship. The father relocated his residence to the Northern Territory as a consequence of securing employment there. Two months later, the mother joined him. Their child, a son, was born in March 1990. For nearly three years the parties lived together in the Northern Territory. They never married.

In February 1994 the parties decided to separate. They travelled to Perth to visit their families but each returned to the Northern Territory, thereafter living apart. The mother took up accommodation with the child in Palmerston, a suburb of Darwin. The father, whose work was on a mining site inland, travelled 320 km virtually each weekend to visit the child. In April 1994, the parties agreed to return to Perth at the end of the year. By this time, the father had formed a friendship with a woman who was later to become his wife. When in October 1994 the father returned to Perth he took up residence with his future wife. In December 1994 the mother also returned to Perth, bringing the child with her.

In February 1995, the mother informed the father that it was her wish to return to the Northern Territory. However, initially she agreed to stay in Perth. In May 1995, the father married. Throughout that year, he was given access to the child each weekend and during school holidays. Towards the end of 1995 the mother once again raised her desire to return to Darwin in order to attend the university there if her application for admission to a university in Perth was unsuccessful. In the event, in December 1995, the mother was informed that she had secured a place in the university in Perth. However, her resolve to return to the Northern Territory was unchanged. She began to make arrangements for travel, schooling and accommodation in anticipation of a move by the end of January 1996. On 21 December 1995, the mother formally notified the father that she would be returning to the Northern Territory with the child. He promptly filed an application with the Family Court of Western Australia. Originally this sought an order that he be granted sole custody of the child and joint guardianship with the mother. He also sought an injunction to restrain the mother from removing the child from Western Australia. Subsequently, the father's application was amended to one for joint guardianship and joint custody but upon the basis that the child would reside in Perth with the father.

The father's application was mentioned in the Family Court on 16 January 1996. As an interim measure, the mother agreed to give an undertaking not to remove the child from the Perth metropolitan area [79] without the consent of the father or further order. Interim orders were made, by consent of both parties, under which the father would continue to have access to the child every weekend, pending final orders.

As defined by the Town Planning and Development Act 1928 WA.

In February 1996, the mother filed her response to the father's application. She sought orders providing her with sole custody and sole guardianship of the child but with reasonable access for the father. The proposed access was to include, where the parties lived in proximity to one another, a continuation of the previous arrangements between them. Otherwise, it was to include access for all mid-year school holidays, four weeks during the Christmas school holidays, regular telephone contact and further access as agreed between them. The costs of travel were to be met by them "proportionately to their income". The mother sought an order that she be free "to leave the Perth metropolitan area and the State of Western Australia".

On 13 February 1996, the mother asked to be released from the undertaking she had previously given. This application was refused. But the trial was set down. It took place in April 1996. Judgment was given by the primary judge with commendable speed [80] . As the litigation progressed through the courts, the mother, reluctantly, remained in Perth. The father continued to have access to the child, as in the past. In September 1996, a daughter was born to the father's marriage.

Unreported; Family Court of WA; 24 April 1996, per Holden J.

The mother still wishes to relocate to the Northern Territory or, in any case, to be released from the constraints of the injunction. The father opposes this, to the extent that it would involve removing the child from physical proximity to him and now from the child's half-sister.

In order to understand the decision of the primary judge, and some of the language in which it is expressed, it is necessary to observe the way in which the parties presented their respective cases. Each had filed proposals for final orders. The judge asked, virtually at the outset, what the mother proposed to do " if I decide that it is in the child's best interest that the child remain in Perth". The mother's then counsel replied:

Your Honour, the mother proposes to stay in Perth [Her] preference is that, basically, she believes that the way of life in Darwin, and the opportunities that are available to her and the child in Darwin, would suit [the child's] interests - long term interests - better.

Each of the parties filed affidavits expressed in terms of the Court's "allowing" the mother to return to the Northern Territory [81] . The mother's affidavit explained that she and the child had been happy in Darwin and that employment prospects in casual part-time teaching were good and that she could commence further studies there:

The [father] has a new life with his wife and expected child in Perth. He is doing what he wants I am asking the Court to allow me to live with my son where I choose. 1. The father's affidavit includes the statement: "In the event that [the mother] is allowed to take [the child] with her to the Northern Territory." The mother's affidavit includes the statement: "If the Court allows me to move to the Northern Territory."

The primary judge treated the matter as one governed exclusively by the Family Court Act 1975 WA (FCA 1975) [82] . By s 27(5) of that Act it was at that time provided that the Court:

has non-federal jurisdiction to make an order containing a provision for the custody of, guardianship of, access to, or welfare of, a child -

(a) if the child in respect of whom the order is sought is then present in the State; and

(b) if the applicant or the respondent in the proceedings in which the order is sought is resident in the State.

Being a case in the "non-federal jurisdiction" of the Court. See FCA 1975, s 27(2).

After recounting the history of the matter, the duty imposed by the Act to regard the welfare of the child as the paramount consideration [83] to be taken into account in determining the orders made [84] , the judge turned to his decisions on the four matters before him, namely (1) the custody of the child; (2) guardianship; (3) the mother's proposed relocation to Darwin; and (4) access.

On custody, the judge found that "ever since [the child] was born the mother has been his primary caregiver". He rejected the argument that the father could provide a better environment for the child. He concluded that "the best interests of the child would be best served by him remaining in the custody of his mother". So far as guardianship was concerned, he observed that because the parents were unmarried "the mother has sole guardianship of him". Noting that each parent had demonstrated "a commitment to a proper upbringing for the child" and had co-operated in matters affecting the child's welfare, he rejected the mother's suggestion that the litigation itself indicated the need for her to be the sole guardian:

[T]here is no presumption either for or against the making of a joint guardianship order In my opinion the facts of this case are such that a joint guardianship order ought to be made. There is nothing in the evidence that suggests that in the future issues will arise concerning the welfare of the child in respect of which the parties cannot reach agreement.

The primary judge then turned to the resulting question which he described to be "whether or not [the mother] ought to be permitted to relocate to Darwin as is her wish". He expressed the opinion that "the proper approach to be taken is first that the welfare of the child concerned is the paramount consideration" [85] . He then addressed himself to three questions [86] : (1) is the application to remove the child made bona fide?; (2) if so, can the court be reasonably satisfied that the guardian will comply with orders for access and other orders made to ensure the continuance of the relationship with the non-custodian?; and (3) the general effect upon the welfare of the child of granting or refusing the application. He acknowledged that each case depended on its own facts [87] and that, subject to the paramount principle, a custodial parent should be free to order his or her own life without unnecessary interference from the other party or the court [88] . He observed that the case fell outside the reasons usually nominated for relocation, viz pursuit of economic advantage, return to a family or the establishment of a new relationship.

Reference was made to FCA 1975, s 28(2). 2. Following In the Marriage of Holmes (1988) 90 FLR 319; [1988] FLC ¶91-918. 3. In the Marriage of I and I (1995) 125 FLR 312; [1995] FLC ¶92-604. 4. In the Marriage of Fragomeli (1993) 113 FLR 229; [1993] FLC ¶92-393.

Over several pages of his reasons, the primary judge analysed the explanations given by the mother for her wish to return to the Northern Territory. He was unconvinced that the university course there would be more advantageous to her than the one offered in Perth. Nor did he accept that she would have a better network of supportive family and friends there than in Perth or that schooling for the child or the lifestyle available would be preferable to Perth. He concluded that the "real motivation behind the mother's desire" to return to the Northern Territory was not the child's best interests but her own happiness. He recorded that for virtually the whole of the child's life he had enjoyed the benefit of "considerable contact with each of his parents". He went on [89] :

From the point of view of the welfare of the child it seems to me that he has been in as an ideal situation as he could possibly be in given that his parents do not live together. It is my opinion that the welfare of the child would be better promoted by him continuing in that situation in the absence of any compelling reasons to the contrary. Accordingly, the mother's application for a release from her undertaking will be dismissed and an injunction will be made restraining her from removing the child from the Perth Metropolitan area. 1. Unreported; Family Court of WA; 24 April 1996 at 24, per Holden J.

Having so decided the issues, the judge maintained, in substance, the access arrangements which had previously applied. He did not discuss, or expressly evaluate, the alternative access arrangements proposed by the mother on the footing that she would be "permitted to move to the Territory" [90] .

Unreported; Family Court of WA; 24 April 1996 at 23, per Holden J.

Both parties appealed. As the appeal arose in the non-federal jurisdiction of the Family Court of Western Australia, it lay to the Full Court of the Supreme Court of that State [91] . The mother sought orders that she have sole guardianship of the child and be "at liberty to remove the child from Western Australia and to the Northern Territory". By his cross-appeal, the father sought an order that he have sole custody of the child or larger access rights.

The Full Court rejected the father's cross-appeal [92] . It dismissed the main complaint of the mother, describing as "the key issue in the appeal" whether or not "she ought to be permitted to return to the Northern Territory with her son" [93] . However, the Court upheld the mother's appeal on the issue of guardianship. It set aside the primary judge's order for joint guardianship. It substituted an order that the mother "remain the sole guardian of and have sole custody of the said child ". The Full Court then granted an order of its own restraining the mother "from changing the Child's principle [sic] place of residence from the Perth metropolitan area ".

By the time the appeal was argued it was for an order for joint custody. The issue of custody has not concerned this Court on the footing that the child remained in Perth. 2. Fox (1997) 139 FLR 216 at 223, per Malcolm CJ.

The reasons of the Full Court were given by Malcolm CJ [94] . His Honour accepted, as the primary judge had done, that the issue of removal of the child turned on an assessment of the "general effect upon the welfare" of the child [95] . Although the request for relocation was made bona fide and the mother could be counted on to comply with orders for access and other orders made to ensure the continuance of the child's relationship with the father, the basic reason for the proposed relocation was, in his Honour's view, the mother's happiness and not the "rights" or "welfare" of the child [96] . His Honour approved the reference by the primary judge to the absence of "any compelling reason" to disturb the "ideal situation" which the child enjoyed in Perth [97] . He recorded that "the real thrust" of the mother's argument had been the suggested under-estimation by the primary judge of the extent to which an inability to move to the Northern Territory would cause discontent and unhappiness for her "with a consequent detriment to the welfare of the child". He rejected that argument concluding that, whilst the wishes of the custodial parent "should have priority", the paramount consideration remained the interests of the child. The former had to give way to the latter in the event of a conflict between them [98] .

Franklyn and Walsh JJ concurring. 2. Fox (1997) 139 FLR 216 at 224, applying In the Marriage of Holmes (1988) 90 FLR 319at 331; [1988] FLC ¶91-918 at 76,663. 3. FCA 1975, s 28(1)(c). See also s 39A. 4. Fox (1997) 139 FLR 216 at 232, referring to In the Marriage of Skeates-Udy and Skeates [1995] FLC ¶92-626 at 82,295, per Kay and Hase JJ. ["In each of those cases there was a strong and compelling reason to allow the custodial parent to leave."] 5. Fox (1997) 139 FLR 216 at 234

Having reminded himself of the limited circumstances in which an appellate court could disturb a discretionary decision such as that in issue, Malcolm CJ concluded that no error of principle "in fact or in any other way" had been demonstrated in the conclusion reached and that the mother's appeal "should be dismissed in so far as she sought permission to remove the child" [99] . But on the question of guardianship, his Honour explained his reasons for disturbing the order for joint guardianship made at trial and for ordering that the mother have sole guardianship [100] :

[T]here was no justification for a change from the mother having sole guardianship as well as sole custody of the child. The main reason why his Honour appears to have been persuaded to make an order for joint guardianship was that the parties had exhibited such a high degree of co-operation in making decisions about the child In my opinion, the very existence of that high degree of co-operation, as well as the mother's obvious willingness to accept and abide by whatever decision the Court made concerning where the best interests of the child lay, constituted reasons why the mother's sole guardianship should not be changed. 1. Fox (1997) 139 FLR 216 at 234 2. Fox (1997) 139 FLR 216 at 234-235

The ground which was seen as authorising interference by the Full Court in the discretionary decision at first instance appears to be stated in the following short passage [101] :

[W]hen one also takes into account the fact that the father had in the meantime married and that there had been a child of that marriage, this was a further reason for preserving the status quo regarding guardianship of the child in question. The sole guardianship in favour of the mother was consistent with her role as the primary caregiver throughout the life of the child to date and the person primarily "responsible for the long-term welfare of the child" [102] In these circumstances, I concluded that no valid reason had been put before the learned Judge to disturb the status quo so far as guardianship was concerned. 1. Fox (1997) 139 FLR 216 at 235 2. FCA 1975, s 34.

From the orders made by the Full Court, the appeals now come, by special leave, to this Court.

A large number of questions were argued in the appeals. The emerging issues may be summarised as follows:

(1) Does the Australian Constitution render ultra vires the judicial orders adverse to the mother and the father, or require the reading down of the legislation pursuant to which those orders were made, to the extent that such orders or legislation would otherwise place an impermissible practical inhibition on the absolutely free movement of the mother and the father within Australia? (The constitutional point.)

(2) Do international treaties to which Australia is a party, which support the right to freedom of movement for a custodial parent, require a construction of the relevant legislation so as to render inapplicable the approach adopted in the injunction restraining the mother, as custodial parent, from relocating to the Northern Territory? (The international treaty point.)

(3) Was the correct starting point for the determination of the order for the guardianship of the child the Family Law Act 1975 Cth (FLA 1975), s 63F (as the father asserted) or FCA 1975, s 35 (as the mother asserted and the courts below assumed)? (The regime for guardianship point.)

(4) If the applicable regime was that of FCA 1975, s 35, should the special leave to appeal granted to the father be revoked upon the basis that FCA 1975 has been repealed and replaced by the Family Court Act 1997 WA (FCA 1997) under which "each of the parents of a child who is under 18 years of age has parental responsibility for the child" [103] ? (The revocation of special leave point.)

(5) If the question of guardianship is governed by FCA 1975, and if special leave is not revoked, did the decision of the Full Court miscarry in altering the order of the primary judge for joint guardianship? (The joint guardianship point.)

(6) If FCA 1975 was applicable, did the decision of the primary judge in relation to the relocation of the mother miscarry? (The relocation point.)

(7) If error is shown which requires the redetermination by the Family Court of Western Australia of the issues of guardianship, relocation and access, having regard to the repeal of FCA 1975 and the transitional provisions of FCA 1997, is the applicable regime that of the old or the new Act? (The applicable law point.)

This was not a case in which the parties would concede no merits to their opponent. Each accepted the real commitment of the other to the welfare of the child. That commitment was clearly demonstrated by the objective facts. It was recognised by the primary judge and the Full Court. There was also a measure of agreement about the approach which should be taken to the resolution of the issues:

(1) The mother expressly disclaimed any argument that the Western Australian courts lacked jurisdiction and power to grant the injunction which she contested. She accepted that, subject to the Australian Constitution, it was within the powers of the Family Court of Western Australia to impose restrictions concerning the residence of a child, in order to protect the child's rights, including those deriving from orders granting a parent access to the child.

(2) The mother conceded that certain difficulties were presented to her attack on the exercise of discretion relating to the issue of relocation from the way her case had been conducted at trial and in the Full Court. Specifically, this included a concession made for the mother at trial that if the court decided that it was in the child's best interests that he should remain in Perth "the mother proposes to stay in Perth". In this sense, the primary judge was not faced by the wrenching choice of severing the life-long connection of the child with the mother as the primary care-giver. The mother had agreed to abide by the decision of the judge. She could not contemplate loss of custody of the child that had lasted since his birth.

(3) Although some criticisms of the terms of the injunction were raised during argument, such as the indefinite duration of the order, the mother advanced no challenge on such grounds accepting that, if the circumstances changed, she could seek variation and that the order would cease when the child reached eighteen years [104] or, possibly, sufficient maturity to make decisions for himself [105] .

(4) Although in his notice of cross-appeal to the Full Court the father had persisted with a contest of the order granting sole custody to the mother, in this Court the father simply sought restoration of the orders of the primary judge. But he made it clear that, if the mother were to relocate to Darwin (or anywhere else other than Perth), he would be seeking orders to the effect that the child reside with him. Although the father pointed out that the actual terms of the injunction granted did not restrain the mother from relocating herself from Perth (as distinct from changing the child's principal place of residence), it was clear enough (and not seriously disputed) that the practical effect of the injunction was to restrain the mother's relocation to the Northern Territory, so long as the child remained in her sole custody [106] .

FCA 1975, s 37(b). 2. cf Gillick v West Norfolk AHA [1986] AC 112 at 183-184 Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 237 3. cf B and B: Family Law Reform Act 1995 (1997) 140 FLR 11 at 89-90; [1997] FLC ¶92-755 at 84,233.

At least until the second half of the eighteenth century, a child born to unmarried parents, called "illegitimate", was regarded by the common law as filius nullius [107] . Consequently such a child was under the legal guardianship of nobody [108] . The applicable law was so strict that even until the end of the nineteenth century an illegitimate child was not regarded as being in the custody of anyone, even of its mother [109] . However, in Barnardo v McHugh [110] , the House of Lords recognised the mother's legal right to the custody of her illegitimate child [111] . The change of direction in the law was the result of an inference drawn from the Poor Law Acts [112] imposing statutory duties on the mother in relation to the maintenance of such a child.

ie, son (or child) of nobody. 2. Dickey, Family Law, 3rd ed (1997), p 334; R v Nash (1883) 10 QBD 454 at 455-456 3. R v Soper (1793) 5 TR 278[101 ER 156 at 156-157]. 4. [1891] AC 388 at 396-398. 5. The position at common law concerning the custody of a "legitimate" child was the opposite. The father was entitled to the child, even "at its mother's breast": R v De Manneville (1804) 5 East 221[102 ER 1054]; cf Dickey, Family Law, 3rd ed (1997), p 333. 6. See Barnardo v McHugh [1891] AC 388 at 396-398The Poor Law Amendment Act 1834 UK 4 & 5 Will IV c 76, s 71 cast an obligation on the mother to maintain the child to the age of 16. See also Chignola v Chignola (1974) 9 SASR 479 at 483, per Bray CJ.

Before and after the enactment of FLA 1975 and FCA 1975, developments occurred in Australia to occasion further quite radical changes to the applicable law. The first was an alteration in community attitudes to the status of illegitimacy and the growth of the number of relationships between couples outside marriage to whom children are born. These developments led to many legislative changes. Relevant to the present appeals was the reference to the Federal Parliament by the Parliaments of all States except Western Australia of their legislative powers in respect of children. This led, in turn, to the amendment of FLA 1975 to cover all children in those affected jurisdictions: those born to married parents (nuptial) and those born to parents who were not married (ex-nuptial) [113] .

The second development arose out of the significant increase in the number of divorces granted annually affecting large numbers of children [114] . This fact occasioned inquiries aimed at reducing the "win/lose mentality in which parents may appear to be pitted against each other to the detriment of the children" [115] . Reports by the Family Law Council [116] and by a Joint Select Committee of the Parliament [117] proposed changes to FLA 1975, addressed to applicable nomenclature, principles and procedures. Many of these proposals were adopted by the Family Law Reform Act 1995 Cth. Those reforms were not immediately copied in the Western Australian law. However, many of them were introduced into the law of that State by FCA 1997.

B and B (1997) 140 FLR 11 at 40; [1997] FLC ¶92-755 at 84,195 records statistics from the Australian Bureau of Statistics. The number of divorces granted annually in Australia is over 48,000 involving approximately 48,000 under-aged children. These figures do not include the separation of parents who were not married. 2. B and B (1997) 140 FLR 11 at 20; [1997] FLC ¶92-755 at 84,180 (par 3.13). 3. Family Law Council Report 1982 (Watson Committee), noted in B and B (1997) 140 FLR 11 at 20; [1997] FLC ¶92-755 at 84,180 (par 3.12). See also Family Law Council, Access - Some Options for Reform (1987) and Family Law Council, Patterns of Parenting after Separation (1992) noted in B and B (1997) 140 FLR 11 at 20-21; [1997] FLC ¶92-755 at 84,180-84,181 (pars 3.13, 3.21). 4. 1991. See B and B (1997) 140 FLR 11 at 20-21; [1997] FLC ¶92-755 at 84,180-84,181.

The third development of relevance arises from the growing influence in recent years, including in this area of the law, of international law to which reference will later be made [10] .

Especially the Convention on the Rights of the Child. The Family Law Reform Act 1995 Cth, introduced s 60B(2) setting out certain principles. Section 60B(2)(a) and (b) reflect articles of the Convention. See B and B (1997) 140 FLR 11 at 22; [1997] FLC ¶92-755 at 84,182 (par 3.30); cf Behrens and Tahmindjis, "Family Law and Human Rights" in Kinley (ed), Human Rights in Australian Law (1998) 169, at p 176.

Relocation cases have long presented special problems for judicial decisions concerning the custody of children. But a fourth development has added to the number, variety and urgency of decisions concerning the relocation of parents having custody of a child. Two particular features of Australian society may be noted. The first is that, overwhelmingly, women constitute the residence parent to whom, in the old nomenclature, "custody" is granted. Of single parent families, the mother is reportedly the residence parent in approximately 84 per cent of cases [11] . Accordingly, in practical terms, court orders restraining movement of a custodial (or residence) parent ordinarily exert inhibitions on the freedom of movement of women, not men [12] . Another feature of the Australian scene, not necessarily reflected to the same degree in other jurisdictions, is the very large proportion of the population born overseas, with family links to which a party to a marriage or relationship which has broken down may return with their child [13] .

Australian Bureau of Statistics, cited in B and B (1997) 140 FLR 11 at 40; [1997] FLC ¶92-755 at 84,195 (par 7.5). 2. See generally Behrens and Tahmindjis, "Family Law and Human Rights" in Kinley (ed), Human Rights in Australian Law (1998) 169, at pp 185-188; Young, "Are Primary Residence Parents as Free to Move as Custodial Parents Were?", Australian Family Lawyer, vol 11(3) (1996) 31. 3. Such cases include In the Marriage of I and I (1995) 125 FLR 312; [1995] FLC ¶92-604 (return to England); In the Marriage of R (1998) 145 FLR 456; 23 Fam LR 456 (return to Scotland); In the Marriage of Brear and Corcoles-Alfaro [1997] FLC ¶92-768 (return to Spain).

Relocation of a child's residence - general principles

This Court comes to the consideration of the arguments in these appeals with the benefit of at least thirty years [2] of consideration of like problems by appellate courts in Australia [3] and other common law jurisdictions [4] . I derive the following general propositions from the authorities.

At least since Poel v Poel [1970] 1 WLR 1469 P v P [1970] 3 All ER 659was decided by the English Court of Appeal. 2. A major review of authority was undertaken by the Full Court of the Family Court of Australia in B and B (1999) 140 FLR 11; [1997] FLC ¶92-755. 3. See, eg, Gordon v Goertz (1996) 134 DLR(4th) 321; Stadniczenko v Stadniczenko [1995] NZFLR 493 Tropea v Tropea 1996 NY Int 048.

First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression. Care must therefore be observed in applying propositions advanced in particular jurisdictions where the legislative duties of the courts are relevantly different [5] . Necessarily, the facts of each case are unique [6] . Those facts call forth a "careful and delicate analysis" [7] , which renders previous decisions of limited assistance, except in so far as they offer illustrations which may tend to promote a general consistency of approach [8] .

Thus in Canada, the Divorce Act, RSC 1985 c 3 (2nd Supp), s 16(8) provides "In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child"; Gordon v Goertz (1996) 134 DLR(4th) 321 at 337; cf Young, "Are Primary Residence Parents as Free to Move as Custodial Parents Were?", Australian Family Lawyer, vol 11(3) (1996) 31, at p 34. 2. In the Marriage of I and I (1995) 125 FLR 312; [1995] FLC ¶92-604. 3. B and B (1997) 140 FLR 11 at 99; [1997] FLC ¶92-755 at 84,240 (par 13.7). 4. In the Marriage of E and E [No 2] (1979) 36 FLR 12 at 53-54; [1979] FLC ¶90-645 at 78,395.

Secondly, unless legislation provides otherwise [9] , no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides [10] . It is necessary for a court, making decisions affecting the child's place of residence, to attempt a resolution of often irreconcilable considerations [11] . Statute may, and commonly does, instruct that the "welfare" (or "best interests") of the child should be the paramount consideration [12] . It may provide a list of considerations or "principles" to be applied in the exercise of the court's powers [13] . However, the "paramount" consideration is not the same as the "sole" or "only" consideration. The relevance of enumerated statutory principles will depend upon the circumstances of the particular case [14] . Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation [15] .

Such as the Canadian Divorce Act, RSC 1985 c 3 (2nd Supp), s 16(8). 2. Tropea v Tropea 1996 NY Int 048. 3. Butler-Sloss, "Children Crossing Frontiers - the Perspective of the English Courts", Paper for the Eleventh Commonwealth Law Conference, Vancouver (1996), cited in B and B (1997) 140 FLR 11 at 52; [1997] FLC ¶92-755 at 84,204. 4. FCA 1975, s 28(2). 5. FCA 1975, s 28(1). 6. B and B (1997) 140 FLR 11 at 97-98; [1997] FLC ¶92-755 at 84,239; Young, "Are Primary Residence Parents as Free to Move as Custodial Parents Were?", Australian Family Lawyer, vol 11(3) (1996) 31, at p 35. 7. cf Stadniczenko v Stadniczenko [1995] NZFLR 493 at 500

Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides [16] . If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule [17] .

B and B (1997) 140 FLR 11 at 94-95; [1997] FLC ¶92-755 at 84,237. 2. In the Marriage of E and E [No 2] (1979) 36 FLR 12 at 53-54; [1979] FLC ¶90-645 at 78,395.

Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian [18] or has been designated the sole guardian [19] of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves [20] , to control their own future destinies [21] and, where desired, to form new relationships [22] , free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child [23] . This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected [24] .

Poel v Poel [1970] 1 WLR 1469 at 1473, per Sachs LJ; P v P [1970] 3 All ER 659 at 662 2. In the Marriage of I and I (1995) 125 FLR 312 at 326; [1995] FLC ¶92-604 at 82,025. 3. cf In the Marriage of Cullen [1981] FLC ¶91-113 at 76,848. 4. In the Marriage of Craven (1976) 26 FLR 131; [1976] FLC ¶90-049; Poel v Poel [1970] 1 WLR 1469 P v P [1970] 3 All ER 659 5. In the Marriage of I and I (1995) 125 FLR 312 at 326; [1995] FLC ¶92-604 at 82,025. 6. Poel v Poel [1970] 1 WLR 1469 at 1473 P v P [1970] 3 All ER 659 at 662 7. In the Marriage of Holmes (1998) 90 FLR 319 at 332; [1988] FLC ¶91-918 at 76,664; B and B (1997) 140 FLR 11 at 42; [1997] FLC ¶92-755 at 84,197. Most earlier authority was addressed to the correct question: see, eg, Re Davis & Councillor (1981) 7 FamLR 619; Thorpe v McCosker (1983) 1 SR(WA) 416; 8 Fam LR 964.

Fifthly, whilst legislative reform [25] sometimes reflecting international law [26] , has laid increased emphasis upon the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis, the rule is not an absolute one. Courts recognise the implications of the application of that right for the custodial (or residence) parent, and particularly because most of them are women [27] . To avoid unnecessary derogations from women's equality or the "feminisation of poverty" resulting from the effective immobilisation of a custodial (or residence) parent [28] , some Canadian judges have lately proposed a presumptive deference in favour of the right of the custodial (or residence) parent to reside where she or he decides unless good reason, relevant to the welfare or best interests of the child, is demonstrated to the contrary [29] . Although this presumption was supported by a minority in the Supreme Court of Canada in Gordon v Goertz [30] , it was rejected by the majority as incompatible with the individualised assessment required by the statute, addressed as it is to the best interests of the child [31] . The objective of the minority was understandable. However, the reasoning of the majority is preferable, at least so far as the applicable Australian legislation is concerned.

See, eg, FLA 1975, s 60B(2). "The principles underlying these objects are that, except when it is or would be contrary to a child's best interests: (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and (b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development." 2. Convention on the Rights of the Child, Arts 2.1, 3.1, 3.2, 7, 9.3. Article 9.3 provides: "States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests." See now FCA 1997, s 114; cf Fortin, Children's Rights and the Developing Law, (1998) at pp 327-328. 3. Bodeker, "The Freedom of Movement of Residential Parents (and others) subsequent to the Family Law Reform Act 1995 Cth ", unpublished thesis (1997), p 67. 4. Moge v Moge (1992) 43 RFL(3rd) 345. 5. McGuyver v Richards (1995) 11 RFL(4th) 433 at 435, per Abella J; cf Carter v Brookes (1990) 30 RFL(3rd) 53. 6. (1996) 134 DLR (4th) 321. See esp L'Heureux-Dubé J at 370-371. 7. Gordon v Goertz (1996) 134 DLR(4th) 321 at 338-340, per McLachlin J.

Sixthly, in evaluating disputes concerning an expressed desire of a custodial (or residence) parent to relocate the residence at which the child will reside in circumstances which necessarily diminish the opportunities of the other parent to have access to, and contact with, the child, courts have suggested, rightly in my view, that a more relaxed attitude should be adopted to relocation within Australia than relocation overseas [32] . This approach is connected with the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community. But even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent. Proof that the custodial (or residence) parent has remarried and wishes to join a new spouse overseas [33] ; wishes to return to a supportive family in the land of origin [34] , or has a well thought out and reasonable plan of migration [35] may suffice to convince the court having jurisdiction over the child, that the best interests of the child favour continuance of the custodial (or residence) arrangement in another jurisdiction but with different orders as to access and contact.

In the Marriage of Holmes [1988] FLC ¶91-918 at 76,663. 2. In the Marriage of Fragomeli (1993) 113 FLR 229; [1993] FLC ¶92-393. 3. In the Marriage of I and I (1995) 125 FLR 312; [1995] FLC ¶92-604. 4. In the Marriage of Lourie and Perlstein (1993) 114 FLR 32[1993] FLC 92-405 (relocation to Israel); cf Poel v Poel [1970] 1 WLR 1469 P v P [1970] 3 All ER 659(relocation to New Zealand).

Seventhly, just as, depending upon the legislation, conditions may be placed upon a custodial (or residence) parent as to where the child may reside according to its best interests [36] , when it is proposed that residence arrangements change, the very fact of disturbing them (particularly if likely in practice to alter access to, and contact with, the other parent) will present a consideration that must be taken into account in judging whether new arrangements should be approved [37] . If a parent seeks to change arrangements affecting the residence of, access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of, or in the best interests of, the child [38] . Because the child's access to, and contact with, the other parent will necessarily be diminished to the extent that relocation of its residence disturbs a physical proximity which has hitherto existed, it will often be necessary to adjust orders as to access. This will be done to offer new and different facilities of access and contact such as longer periods of residence with the other parent during school holidays and at other times [39] .

In the Marriage of Skeates-Udy and Skeates [1995] FLC ¶92-626. 2. FCA 1975, s 39A(b)(iii) required the Court to take into account "the desirability of, and the effect of, any change in the existing arrangements for the care of the child". See discussion Gordon v Goertz (1996) 134 DLR(4th) 321 at 341. 3. cf In the Marriage of Skeates-Udy and Skeates [1995] FLC ¶92-626. 4. cf In the Marriage of I and I (1995) 125 FLR 312 at 329; [1995] FLC ¶92-604 at 82,028.

Eighthly, although at common law the concept of custody was indivisible [40] , statute has altered this position. Joint custody and guardianship became increasingly common even before recent legislation made shared parental responsibility for a child the modern norm [41] . Yet even now, courts necessarily retain the power to order otherwise [42] . Under the legislation, before it was changed, the determination of whether joint or sole guardianship should be ordered was within the discretion of the court [43] . Departure from the norm of shared parental responsibility is also within the court's discretion.

Re W (An Infant) [1964] Ch 202 Jussa v Jussa [1972] 1 WLR 881[1972] 2 All ER 600 2. FLA 1975, s 61C(1). See now FCA 1997, s 69(1). The latter section was not in force when these proceedings were tried. 3. FLA 1975, s 61C(3); cf FCA 1997, s 69(3) now in force. 4. cf In the Marriage of Cullen [1981] FLC ¶91-113 at 76,847; In the Marriage of McEnearney [1980] FLC ¶90-866.

Ninthly, an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved [44] . Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial [45] .

In the Marriage of White (1995) 128 FLR 126; [1995] FLC ¶92-648 applying In the Marriage of R (1988) 146 FLR 267 at 282-283; 23 Fam LR 456 at 471; In the Marriage of A and J (1995) 127 FLR 79; [1995] FLC ¶92-619. 2. Gronow v Gronow (1979) 144 CLR 513 at 519cf In the Marriage of Skeates-Udy and Skeates [1995] FLC ¶92-626 at 82,294-82,295; Moge v Moge (1992) 43 RFL(3rd) 345.

Against the background of these general principles, which were applicable to the present case, I turn to the issues raised by the parties.

Applicable provisions: Both the mother and the father advanced arguments based on s 92 of the Australian Constitution [46] or, in the case of the Northern Territory, its statutory equivalent. The original form of what became s 92 spoke of "trade and intercourse throughout the Commonwealth" [47] . That reference to "throughout the Commonwealth" persisted through most of the drafts. It was at the Convention in Melbourne in 1898 that the phrase "among the States" was substituted [48] and the word "commerce" inserted [49] . The terms of s 92 do not protect, relevantly, intercourse between a State and a Territory [50] . In recognition of the limitation upon the application of s 92 to the territories, federal legislation was enacted in 1926 for the Northern Territory. It provided that "trade, commerce and intercourse between the Territory and the States shall be absolutely free" [51] . The validity of that provision was upheld by this Court [52] . It now appears as s 49 of the Northern Territory (Self-Government) Act 1978 Cth (the Self-Government Act).

Section 92 states, relevantly: " [T]rade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free." 2. Clause 8 of Ch IV of the Draft Bill adopted by the Convention in Sydney (1891). 3. Melbourne Convention Debates (1898), pp 1014-1020 (Cl 89). 4. La Nauze, "A Little Bit of Lawyers' Language - The History of "Absolutely Free" 1890-1900" in Martin (ed) Essays in Australian Federation (1969) 57, at pp 60-61, 93. 5. Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29 at 61, 64, 73, 86, 113; cf Lamshed v Lake (1958) 99 CLR 132 at 143 Pioneer Express Pty Ltd v Hotchkiss (1958) 101 CLR 536 at 548, 551, 553, 564; Attorney-General (WA) v Australian National Airlines Commission (1976) 138 CLR 492 at 514, 526; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 579, 606, 650. 6. Northern Territory (Administration) Act 1910 Cth, s 10, which was inserted by the Northern Territory (Administration) Act 1931 Cth, s 6. 7. Lamshed v Lake (1958) 99 CLR 132

A question was raised during argument as to whether this legislative provision, first enacted and then re-enacted before this Court's clarification of the meaning and operation of s 92 of the Constitution in Cole v Whitfield [53] , incorporated the previous jurisprudence within the statutory phrase. That suggestion should be rejected. The clear purpose of the Parliament, in the repeated enactment of language identical to s 92 of the Constitution, was to extend to the Northern Territory, to the fullest extent constitutionally possible, the kinds of protections which s 92 secures to "trade, commerce, and intercourse among the States". The meaning of the word "intercourse" in this context was left open in Cole v Whitfield [54] . However, it clearly extends to migration and movement of persons across State borders [55] .

(1988) 165 CLR 360 at 399-400. 2. (1988) 165 CLR 360 at 393; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 307 3. R v Smithers; Ex parte Benson (1912) 16 CLR 99 at 118 Gratwick v Johnson (1945) 70 CLR 1 at 17 Cole v Whitfield (1988) 165 CLR 360 at 393

Arguments: The mother submitted that the injunction granted by the Family Court of Western Australia effectively restrained her from moving interstate and, to that extent, the order (or the provisions of FCA 1975 which purportedly authorised it) infringed the freedom of intercourse guaranteed by s 92 of the Constitution or s 49 of the Self-Government Act so far as the latter provided for intercourse between the States and the Northern Territory.

One of three consequences would follow, according to the mother's submission. The order of the Western Australian court would be ultra vires as contrary to the Australian Constitution or applicable federal law; the provisions of the Western Australian law (FCA 1975) which sustained the order would be invalid to the extent that they purported to authorise an order contrary to the Constitution or inconsistent with the Self-Government Act; or the Western Australian law (FCA 1975) would, in accordance with the Interpretation Act 1984 WA, s 7, be read down so as to avoid any inconsistency with the Constitution or the applicable federal law [56] . As so read down, FCA 1975 would not support the injunction granted against the mother. Furthermore, in the exercise of the discretionary powers vested in the Western Australian court by FCA 1975, it would be bound to use its powers in a way conformable to the provisions of the Constitution and federal legislation providing (relevantly) that "intercourse" among the States and between the States and the Northern Territory should be "absolutely free".

cf Kruger v The Commonwealth (1997) 190 CLR 1 at 45

The father's constitutional argument was defensive. It was raised in a response to the mother's reliance on constitutionally protected freedom of movement. The father's primary contention was that, because the child was born in the Northern Territory, the starting point for the consideration by the Western Australian court of the order which should be made for guardianship was the joint custodianship provided under FLA 1975 (s 63F). However, if (contrary to this submission) upon the removal of the parties with the child to Western Australia, the status in law of the child was altered and guardianship thereafter governed by s 35 of FCA 1975 (with its presumption in favour of the guardianship rights of the mother), such an alteration constituted an impermissible burden on "intercourse". It exacted a price for the free movement of people from the Northern Territory to Western Australia. To that extent, s 35 of FCA 1975 was inconsistent with s 49 of the Self-Government Act. To the extent of such inconsistency, the State law was invalid. Alternatively, it would be read down so as to have no application to the case of a child brought from the Northern Territory into Western Australia.

Application to Court orders: In the mother's appeal, a threshold question arises as to whether s 92 of the Constitution (and s 49 of the Self-Government Act) are addressed to the orders of a court or only to any legislation relied upon to sustain those orders. Nothing in the language of s 92 (or s 49 of the Self-Government Act) limits the operation of the stated prohibition to legislation, although this has been the usual context in which the provisions have been invoked. In Gratwick v Johnson [57] an order made by the Executive Government, pursuant to national security regulations, was found to be a direct interference with the freedom of intercourse amongst the States guaranteed by s 92 of the Constitution and thus invalid. There seems no reason of principle why an order made by a court which infringes the constitutional or statutory prohibition should not suffer the same fate.

Support for this view may be derived from the context in which s 92 appears in the Constitution. Whilst some surrounding sections are expressly addressed to the powers of the Parliament [58] , or of a State Parliament [59] , other provisions are addressed to the Executive Government of the Commonwealth (esp ss 86, 87 and 89) and the States (s 90). In such a legislative context, the words of s 92 of the Constitution should not be read as confined to a prohibition on incompatible legislation or executive action. This conclusion is reinforced when covering cl 5 of the Commonwealth of Australia Constitution Act 1900 Imp (63 and 64 Vict c 12) is remembered. By that provision the Constitution and all laws made by the Parliament of the Commonwealth under the Constitution "shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State". The requirements of s 92 (and of s 49 of the Self-Government Act) were therefore binding on the Western Australian courts in granting the injunction addressed to the mother. They were also binding on the Parliament of Western Australia in enacting FCA 1975. That Act, and the powers of those courts, must necessarily be read so as to conform to s 92 of the Constitution and s 49 of the Self-Government Act to the extent that the language of those provisions is applicable.

esp ss 91, 93, 94 and 96. Thus s 92 binds the Commonwealth: James v The Commonwealth (1936) 55 CLR 1 at 61 Cole v Whitfield (1988) 165 CLR 360 at 396 2. Section 95 (the Parliament of Western Australia).

Practical burden: It was submitted [60] that the order of the Family Court of Western Australia did not, in terms, prevent the mother's movement across State borders or anywhere else within Western Australia, as for example on holidays. The only restraint of the injunction was upon a change in the child's principal place of residence from the Perth metropolitan area, as defined. However, the concern of s 92 (and of s 49 of the Self-Government Act) is with the practical burden which the impugned law or judicial order creates [61] . Viewed in this light, there can be no doubt that, given the age of the child, the effect of the injunction upon the mother whilst she remained the custodial parent is to restrain her ability to move out of the Perth metropolitan area and hence out of Western Australia. Specifically, the injunction was granted as a response to the mother's request to be released from her earlier undertaking not to move from that area. Accordingly, as a matter of practical burden, the injunction (and the Western Australian law supporting it) have a necessary effect of limiting the mother's interstate movements or movement to the Northern Territory as she desired. As a matter of practicality, the only way the mother's freedom of movement could be fully restored would be by her surrendering the custody of the child and agreeing to the revocation of the order under which the child was to reside with her. She had made it perfectly plain that she regarded this as an intolerable price.

See, eg, written submissions of the Commonwealth, 2 (par 2.5), 4 (par 2.8). 2. Cole v Whitfield (1988) 165 CLR 360 at 399-400 North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW (1975) 134 CLR 559 at 606-607

It is not necessary for the operation of s 92 that the burden imposed by the impugned law (or judicial order) should be discriminatory on its face [62] . Here we are concerned with effects. That requires a realistic approach to judging an effect - not one blinkered by the language in which the inhibitory rule is expressed.

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 56

Not an impermissible burden: So far as the mother's appeal is concerned, the issue is whether the practical burden and restriction imposed on her which affected her movements across State borders [63] or from a State into the Northern Territory, is impermissible for the purposes of the Constitution or the Self-Government Act. Whilst it is true that both s 92 of the Constitution and s 49 of the Self-Government Act are expressed in terms of absolute freedom from inhibitory restrictions, the context in which such freedom is promised, as an attribute of an ordered society which protects and vindicates the legitimate legal claims of every individual within it [64] , necessitates a characterisation of the law (or of the court order) which is impugned. Self-evidently, there will be different laws within different jurisdictions of the Commonwealth which impose burdens of various kinds on individuals as they move from one jurisdiction to another. The laws on maximum vehicle speed limits are a case in point. It could not be seriously suggested that such differences of legal obligation contravene either s 92 of the Constitution or, in the case of the Northern Territory, s 49 of the Self-Government Act [65] . Similarly, incarceration by imprisonment imposes, whilst it lasts, virtually an absolute prohibition on transborder movements of the prisoner. Yet it could not be argued that the court order sentencing the prisoner to imprisonment (or the law under which that order is made) runs foul of the absolute freedom guaranteed by s 92 of the Constitution or, in the case of the Northern Territory, s 49 of the Self-Government Act.

Cole v Whitfield (1988) 165 CLR 360 at 393 Gratwick v Johnson (1945) 70 CLR 1 at 17 2. See, eg, Cunliffe v The Commonwealth (1994) 182 CLR 272 at 346cf Kruger v The Commonwealth (1997) 190 CLR 1 at 128 3. cf Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 58

To differentiate laws or court orders which infringe those prohibitions from those which do not, it is necessary to engage in the familiar task of constitutional characterisation of the law or order which is impugned. If they were addressed to some other purpose and imposed a burden or restriction upon transborder movement only as an incidental effect of the attainment of that purpose [66] , no offence to s 92 of the Constitution (nor inconsistency with s 49 of the Self-Government Act in the case of the Northern Territory) may be involved. To decide whether it is, the decision-maker must evaluate the character and purpose of the law or order in question. It is necessary to identify its object and consider whether the means adopted to achieve that object are proportionate and the burden or restriction on interstate movement are no more than incidental and necessary consequences of the law's permissible operation [67] .

Cole v Whitfield (1988) 165 CLR 360 at 393 2. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 59 Australian Capital Television Pty Ltd v The Commonwealth [No 2] (1992) 177 CLR 106 at 157, 190-196; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 324, 333, 336, 384.

In so far as FCA 1975 authorised the Western Australian courts to impose on the custodial parent conditions as to where a child within the jurisdiction of such courts should reside, the practical burden of that law, and of a judicial order made in reliance upon it, was purely incidental to the attainment of another purpose. That purpose was to safeguard the welfare of the child and to attain its best interests [68] . This is a purpose apt to legal regulation in an ordered society and for the protection or vindication of the legitimate interests of persons in that society, including children [69] . The impugned law (and order) do not operate directly on movement across internal borders within Australia, as such. The practical burden which results for the movement of persons across borders within Australia is real. But it is proportionate to the achievement of the object of the law (and order) in question, viz the attainment of the welfare of a child and the protection of the child's best interests.

In the Marriage of Crossley (unreported; Family Court; Fogarty J; 22 December 1980) noted in In the Marriage of I and I (1995) 125 FLR 312 at 324; [1995] FLC ¶92-604 at 82,024. 2. Cunliffe v The Commonwealth (1994) 182 CLR 272 at 346

Without exploring fully all of the implications for free movement within Australia to be derived from the very nature of the federal Commonwealth as created by the Constitution [70] , our nation is clearly one which is organised to permit not only a very high measure of freedom of movement within its borders but also laws and court orders which indirectly or incidentally have consequences which inhibit, in ways proportionate to the attainment of their objects, totally unrestricted freedom. Completely unlimited freedom would be a form of anarchy [71] . If the mother's argument were no more than that FCA 1975 (and the court orders made under it) should be construed keeping generally in mind the high measure of personal freedom to move throughout the Commonwealth without unjustifiable or unreasonable restrictions, I would agree with her. But to the extent to which she appealed to s 92 of the Australian Constitution, or s 49 of the Self-Government Act, to invalidate the injunction granted in relation to the residence of the child, or the provisions of FCA 1975 under which that injunction was made, I would dismiss her challenge. There is no constitutional invalidity either in the court order or the provisions of FCA 1975 sustaining it. Nor are they inconsistent with s 49 of the Self-Government Act in so far as, incidentally and proportionately to the attainment of their objects, they impose a practical burden on the movement of the mother to the Northern Territory which would alter the residence of the child and disturb the arrangements under which that child enjoys contact with and access to his father.

cf Buck v Bavone (1976) 135 CLR 110 at 137 2. Thus the arrest of a fugitive offender at a border does not offend s 92 of the Constitution (or s 49 of the Self-Government Act). See Cole v Whitfield (1988) 165 CLR 360 at 393cf Melbourne Corporation v Barry (1922) 31 CLR 174 at 206

For analogous reasons the father's contention that FCA 1975, s 35 was inconsistent with s 49 of the Self-Government Act, in that it resulted in an impermissible burden on his free movement from the Northern Territory to Western Australia, is without substance. If there was any such burden, it was certainly not imposed by reference to the crossing of borders within the Commonwealth [72] . It was incidental to the attainment of other legitimate and lawful purposes. It resulted in a restriction which was proportionate to the achievement of that objective. That objective was one apt to an ordered society and to the protection or vindication of the legitimate claims of individuals (including children) within such a society [73] . The parties' constitutional arguments therefore have no substance.

Australian Capital Television Pty Ltd v The Commonwealth [No 2] (1992) 177 CLR 106 at 193-195 Cunliffe v The Commonwealth (1994) 182 CLR 272 at 307 2. Cunliffe v The Commonwealth (1994) 182 CLR 272 at 346

The mother argued that, because an ambiguity arose concerning the exercise of a discretion by reference to the paramount consideration of the welfare of the child which nonetheless also affected the rights of other members of the child's family, it was permissible to have recourse to applicable principles of international law for the purpose of determining how the statutory powers should be exercised [74] . Upon this footing, the mother invoked several international instruments to which Australia is a party. She did so to advance her argument that her right to freedom of movement was an important one which the law should, wherever possible, uphold and protect [75] .

She relied on Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42 Dietrich v The Queen (1992) 177 CLR 292 at 306 2. Relying on International Covenant on Civil and Political Rights, Art 12.1. See Human Rights and Equal Opportunity Commission Act 1986 Cth, s 3(1). See also Convention on the Elimination of All Forms of Discrimination against Women, Art 28.

The mother's arguments, in this regard, did not pay sufficient attention to the United Nations Convention on the Rights of the Child. Although not reflected in the provisions of FCA 1975 at the time of the proceedings between the parties, that Convention includes articles obliging States Parties to ensure that, where the child's parents are separated, the child's right to "maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests" shall be respected [76] .

Convention on the Rights of the Child, Art 9.3. See also Art 7. See discussion B and B (1997) 140 FLR 11 at 23; [1997] FLC ¶92-755 at 84,182-84,183.

I would certainly hold that a judge, exercising jurisdiction of the kind invoked here, may properly inform himself or herself of the general principles of relevant international law. This is especially so where those principles are stated in international human rights instruments to which Australia is a party. However, the difficulty in the present case is that any such consideration would not take the judge very far. Certainly, it would not assist in the discharge of the functions assigned by local law, such as FCA 1975. In a sense, the international conventions relevant to this subject merely express the sometimes conflicting principles which are already reflected in Australian law and court decisions: a general recognition of the importance of freedom of movement; an appreciation of the tendency of orders restraining the movement of custodial parents to fall unequally on women; and an acknowledgment that the right of access to the non-custodial parent is not only valuable to that parent but is an important right of the child concerned, to be upheld for that reason in all but exceptional circumstances.

Knowledge of the principles of international law may be useful where the amendment of Australia's family law has occurred in ways to bring it into conformity with international law [77] . Awareness of international law may also sometimes assist a judge to exercise the applicable statutory powers in a way conformable with basic principle, given the high measure of compatibility which usually exists between the common law of Australia and international statements of fundamental human rights. But save to the extent that the international principles invoked by each party help to put their controversies into a conceptual context and express the basic values which must be taken into account, I do not consider that examination of the international instruments, or the jurisprudence which has gathered around them, assists to resolve the problems faced here. International law merely reflects, and repeats, the considerations which give rise to those problems. In this case, it does not throw much light on how they should be resolved.

See, eg, the incorporation of principles in FLA 1975, s 68F; cf now FCA 1997, s 166.

The father's appeal against the decision of the Full Court setting aside the primary judge's order for joint guardianship presents several questions. Logically, it is appropriate to deal first with the contention that the Full Court had approached the issue by reference to the wrong legal regime.

Although this point was not, apparently, advanced either at trial or in the Full Court, the father's submission is one of law. It was not suggested that raising it now presented any procedural unfairness to the mother. The argument was that FLA 1975, which applied to the child at his birth in the Northern Territory, assigned (relevantly) joint guardianship to the parents of the child which had not been altered when their dispute about the guardianship came to be determined. As it stood at the time of the child's birth, s 63F(1) of FLA 1975 provided:

Subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section), each of the parents of a child who has not attained 18 years of age is a guardian of the child, and the parents have the joint custody of the child.

The father submitted that the Full Court had ordered that the mother be the "sole guardian" of the child in the mistaken belief that this was the way to restore the "status quo" for the disturbance of which no "valid reason" had been given by the primary judge [78] . In fact, according to the father, the "status quo", before any court order was made, was joint guardianship in accordance with FLA 1975, s 63F(1). To the extent that a differing starting point was provided by State law, in terms of FCA 1975, s 35, it was inconsistent with the provisions of FLA 1975, s 63F(1), a federal law. To the extent of the inconsistency, the provisions of FCA 1975, s 35 were invalid in their application to a case such as the present [79] . Alternatively, they would be read down to avoid any such inconsistency.

Fox (1997) 139 FLR 216 at 235, per Malcolm CJ, Franklyn and Walsh JJ concurring. 2. Under the Australian Constitution, s 109.

The father acknowledged that, in accordance with the opening words of FLA 1975, s 63F(1) an order of a court, including the Family Court of Western Australia, might in a case where otherwise that court had jurisdiction, vary the presumptive position established by FLA 1975, s 63F(1). But, in approaching a court for an order, the starting point would be, in the case of an ex-nuptial child born in the Northern Territory [80] (such as the child of these parties), the joint guardianship acquired by birth by operation of the law applicable in the Northern Territory.

The mother (supported by the Commonwealth and the State of Western Australia) resisted this argument. She submitted that, upon a true construction of the interrelationship of FLA 1975 and FCA 1975, when the parties and their child moved from the Northern Territory to Western Australia, they came into the different legal regime established by the State Act, FCA 1975. In respect of their dispute as to the custody and guardianship of the child, they were then within the exclusive jurisdiction of the Family Court of Western Australia exercising non-federal jurisdiction under, and in accordance with, FCA 1975. This meant that FLA 1975, s 63F(1) no longer applied to the child, at least once the jurisdiction of the Family Court of Western Australia was properly engaged. In such a case that Court was bound to apply its own law. This included the law as then stated in FCA 1975, s 35. That section provided, relevantly [81] :

Subject to any order made pursuant to this Division, where the parents of a child who has not attained the age of 18 years were not married at the time of the birth of the child or subsequently, the mother of the child has the custody and guardianship of the child. 1. FCA 1975, s 35 was repealed when FCA 1997 was enacted.

The question of the applicable guardianship regime is not a simple one to answer. There are arguments for each side.

On the one hand, the scheme of the interrelationship between the federal Act (FLA 1975) and the State law (FCA 1975) clearly contemplated a bifurcation of applicable statutory regimes within Australia. Whereas the Parliaments of all other States have referred to the Parliament of the Commonwealth legislative powers with respect to the custody and guardianship of, and access to, children, the Parliament of Western Australia has never done so. Accordingly, within Western Australia, those subject matters remain governed by State law. Part VII of FLA 1975 does not apply to Western Australia. In exercising its non-federal jurisdiction in relation to an ex-nuptial child, the courts of Western Australia are therefore obliged to apply Western Australian law. They secure their jurisdiction over the parties and the child because the child in respect of whom the order is sought was present in the State and the applicant and respondent were each resident in the State [82] . So went the mother's arguments.

FCA 1975, s 27. See also s 4, definition of child.

For the father's proposition it may be said that the provisions of FLA 1975, s 63F(1), as it formerly stood, were open ended in the sense that they applied, by inference, until the child concerned attained eighteen years of age or was made subject to any order of a court providing differently. If the status of joint custody or joint guardianship was assigned by federal law, the question arises as to how that status was lost, otherwise than by federal law? Guardianship (and custody) being matters affecting status, it would normally be expected that they would be clear and insusceptible to alteration by the mere physical movement of the child to a jurisdiction outside that to which Pt VII (Children) of FLA 1975 applies, whether Western Australia, another State or overseas.

Because each of the provisions in question (FLA 1975, s 63F(1) and FCA 1975, s 35) has been repealed, I am not inclined to delay long over this issue. The better view is that, notwithstanding the bifurcation of Australian law on ex-nuptial children in this context, once FLA 1975, s 63F(1) was attracted to provide for the guardianship of a child subject to its provisions, only federal law could alter the arrangements for guardianship so made. By the terms of s 63F(1) a court, including one operating under a law other than FLA 1975, could, by order, change the guardianship arrangement provided by s 63F(1). Thus, the Family Court of Western Australia, otherwise acting within its jurisdiction, would be empowered to do so. But its warrant for effecting the alteration would be the opening words of FLA 1975, s 63F(1), a federal Act. It would not, as such, be the powers otherwise enjoyed by that Court under its own (State) statute. Just as the Roman carried the status of citizenship, so the child, born in the Northern Territory in 1990 carried with him or her, until the age of eighteen years or until altered by order of a court, the statutory arrangement for joint guardianship by each of the parents for which FLA 1975, s 63F(1) then provided.

Accordingly, the reference by the Full Court to what it saw as the impermissible disturbance of the "status quo" which should "remain" in force was, in this case, incorrect. The status quo ante here was, so far as guardianship was concerned, precisely that which the primary judge ordered. He did not "disturb the status quo", as the Full Court suggested. He confirmed it. It "remained unaltered". By his order he continued it, although then under Western Australian law: that order displacing the federal statutory presumption which had operated to that time.

This conclusion requires that the father's appeal be allowed. It demonstrates that the suggested foundation for the order of the Full Court was misconceived in the peculiar circumstances of this case.

The mother argued that the grant of special leave in favour of the father should be revoked. This proposition was advanced on the footing that the applicable legal regime for guardianship in Western Australia had changed since the decision of the Full Court. In particular, FCA 1975, s 35, as it formerly stood, was not re-enacted in the now applicable Western Australian law, viz FCA 1997 [83] .

For several reasons, this submission should be rejected. First, because FLA 1975, s 63F(1) applied to the case, FCA 1975, s 35 was inapplicable, whatever its provisions otherwise meant. Secondly, the father had other legitimate criticisms of the approach of the Full Court, apart from those addressed to the meaning of FCA 1975, s 35. He is entitled to have those grounds of appeal determined. Thirdly, the issue of the guardianship of the child is one which concerns the status and interests of the child himself and not solely the interests of the father and the mother. I would therefore reject the motion for the revocation of the grant of special leave.

There is a further reason which supports the conclusion which I have already stated that the Full Court erred in disturbing the primary judge's order in favour of joint guardianship. This arises from the justification offered by the Full Court for interfering in the discretionary decision of the primary judge on this issue. In rejecting the mother's appeal against the injunction restraining her from changing the principal place of residence of the child from Perth to the Northern Territory, the Full Court properly reminded themselves of the restraints imposed on the disturbance of discretionary decisions generally [84] and decisions affecting custody and guardianship of children in particular [85] . However, when their Honours turned to the issue of guardianship they appear, with respect, to have proceeded to review the conclusion reached by the primary judge on the merits, rather than approaching the matter in the orthodox way by asking whether an error was shown which would entitle them, in law, to set aside that judge's decision and substitute one of their own.

House v The King (1936) 55 CLR 499 at 504-505was referred to by the Full Court, Fox (1997) 139 FLR 216 at 227 2. Gronow v Gronow (1979) 144 CLR 513 at 519-520was referred to by the Full Court, Fox (1997) 139 FLR 216 at 230-231

The only suggested error of principle, in the rather brief treatment of the issue of guardianship, was that "no valid reason had been put before [the primary judge] to disturb the status quo so far as guardianship was concerned" [86] . As I have shown, that statement proceeds on a false legal premise, presumably reliant upon the view taken of the operation of FCA 1975, s 35. But, in any case, the reasons display no proper basis for disturbing the primary judge's exercise of discretion. Even if (as the father contested) FCA 1975, s 35 had applied, the "status quo" was that, as a matter of fact, for most of the child's life, the mother had been the primary care-giver, and in recent years the sole custodian and residence parent, but that both parents had acted as guardians. Each parent had shared with the other important decisions relating to the residential arrangements, schooling, healthcare and other matters which guardians conventionally decide in relation to children. To the extent that the Full Court were suggesting an error of fact-finding on the part of the primary judge, their reasons are unconvincing. Yet if that ground of error is knocked away, no other possible justification existed for the disturbance of the primary judge's order for joint guardianship. There was no demonstration that a fresh consideration of the matters provided in FCA 1975 [87] , relevant to the welfare of the child, established error on the part of the primary judge which authorised correction by the Full Court.

Fox (1997) 139 FLR 216 at 235 2. s 39A. See also s 28(2).

Having shown at least two bases upon which the father's appeal must succeed, it is not necessary to address the further arguments advanced by him about the meaning of FCA 1975, s 35 and its application once the jurisdiction of the Western Australian court was engaged. As that section is now banished to the pages of legal history, where it joins the unloved common law principle governing illegitimate children (which it, in part, reflected), no good purpose would be served by unravelling its meaning. However, for the reasons stated, the father's appeal must succeed.

That brings me to the mother's complaints that the Full Court failed to correct errors of principle in the approach of the primary judge which resulted in the determination that she should have sole custody of the child but under conditions which subjected her to the restrictions of an extremely severe injunction. If she wished to remain the custodial residence parent, that injunction effectively confined her, with the child, to the Perth metropolitan area. It prevented her from making a new life for herself in the Northern Territory, as was her desire.

The mother recognised that it was not to the point to submit that the discretion of the primary judge ought to have been exercised in a different way. She accepted the need to establish errors of principle which should have occasioned the intervention of the Full Court and would attract relief from this Court.

I do not consider that the references in the reasons of the primary judge [88] and in those of the Full Court [89] to the provision of "permission" to the mother to return to the Northern Territory with her son indicated an erroneous understanding of the decision which had actually to be made. As I have shown, this was the very way in which the parties framed their respective affidavits and presented their arguments. It was unsurprising, therefore, that the judges should also slip into the same language. Notwithstanding this, it would be preferable that such references to "permission" to relocate be avoided. The word has a tendency to distract attention from the jurisdiction actually being exercised. In this case, it concerned the custody and guardianship of the child, residence arrangements and access and contact orders, all of which fell to be decided having regard to the welfare of the child as the paramount consideration [90] . To treat the determination of the residence of the child, and the connected issue of custody, as dependent upon the giving or withholding of "permission" to a parent to relocate his or her residence may divert attention from the child's welfare, to the competing needs and demands of the parents in conflict.

Unreported; Family Court of WA; 24 April 1996 at 23, per Holden J. 2. Fox (1997) 139 FLR 216 at 223 3. FCA 1975, s 28(2).

The same might be said of the reference to the consideration of the "bona fides" of the parent proposing relocation. Although this is given in a number of decisions as one of the matters to be evaluated [91] , for a like reason I am unpersuaded that it is relevant of itself. In the circumstances of the breakdown of a relationship, most applications for relocation will arise from complex reasons. They may have nothing to do with the suitability of a parent, otherwise appropriate, to be the custodian (or residence) parent of the child. However, in this case, the bona fides of the mother was found in her favour, so nothing ultimately turns on the point.

See, eg, In the Marriage of Holmes (1988) 90 FLR 319at 331; [1988] FLC ¶91-918 at 76,663.

The central attack which the mother launched on the reasons of the primary judge for providing the injunction concerned his approach to the question of her relocation, his close analysis of her given reasons for proposing it, and his conclusion that "the welfare of the child would be better promoted by him continuing in [the] situation [in Perth] in the absence of any compelling reasons to the contrary" [92] . The mother argued that these demonstrated an erroneous approach to the question for decision. I agree.

Unreported; Family Court of WA; 24 April 1996 at 24, per Holden J.

First, to impose upon a custodial (or residence) parent the obligation to demonstrate "compelling reasons" to justify relocation of that parent's residence, with consequent relocation of the residence of the child, is not warranted either by the statutory instructions to regard as paramount the welfare of the child [93] or by the practicalities affecting parents. Parents enjoy as much freedom as is compatible with their obligations with regard to the child. The freedom continues, including with respect to their entitlement to live where they choose. At least in the case of a proposed relocation within Australia, the need to demonstrate "compelling reasons" imposes on a custodial parent an unreasonable inhibition. It effectively ties that parent to an obligation of physical proximity to a person with whom, by definition, the personal relationship which gave rise to the birth of the child has finished or at least significantly altered.

Whilst a proposal to take a child to a place where it would be exposed to risks and dangers might, in a particular case, warrant a need for "compelling reasons", such seems scarcely applicable for relocation within Australia. In the latter case, the attention of the decision-maker should ordinarily be to the possibility of formulating different arrangements for access and contact which would meet that child's welfare. If "compelling reasons" were the criterion for relocation, few indeed would be the custodial parents who could meet that standard. The result would be a very serious inhibition upon the freedoms of custodial parents, mostly women, without any commensurate or equivalent inhibition upon the freedoms of movement of non-custodial parents.

Secondly, it is important to remember that in Australia, whilst the welfare (or best interests) of the child are, by statute, the "paramount" consideration in the exercise of jurisdiction such as was invoked here, they are not the sole consideration. In this respect, the position in this country is different from that in Canada [94] . It more closely conforms to the language of the Convention on the Rights of the Child [95] . Statutory instructions as to the paramountcy that is to be accorded to the child's welfare or best interests are to be understood as they apply to a child living in Australian society, normally in relationship with both parents and other members of its family. Whilst the legislation considered in this case, and later statutory reforms, give the highest priority to the child's welfare and best interests, that consideration does not expel every other relevant interest from receiving its due weight. In part, this is because (as the English courts recognised long ago) the enjoyment by parents of their freedoms necessarily impinges on the happiness of the child [96] . But, in part, it is also because legislation such as FLA 1975 and FCA 1975 is enacted to take effect within a society of a particular character whose members enjoy a high measure of personal freedom, diminished only to the extent that the law obliges.

Divorce Act, RSC 1985 c 3 (2nd Supp), s 16(8). 2. Convention on the Rights of the Child, Art 3.1: "In all actions concerning children, whether undertaken by courts of law the best interests of the child shall be a primary consideration." 3. Poel v Poel [1970] 1 WLR 1469 P v P [1970] 3 All ER 659

Thirdly, the mother complained that neither the primary judge nor the Full Court had given any attention to the alternative proposal which she had made for enlarged rights of access to, and contact with, the child by the father during school holidays and at other times if she relocated with the child to the Northern Territory. In part, the explanation for this may have been the concession which the mother made that she would not relocate to the Northern Territory if it meant separation from the child. But, mostly, the reason for the lack of attention to her alternative proposal arose from the conclusion that the arrangements in Perth were "ideal" because they meant regular physical contact with both parents (and an extended family), whereas this would be diminished if the mother relocated. That approach impermissibly restrained the residence choices open to the mother. It illustrates an application of the legislation unduly favourable to the interests of the non-residential parent. He is subject to no injunction and he lives where he chooses effectively requiring his former partner to remain close at hand to maximise his contacts with the child of their relationship (and, it must be added, the child's contacts with him). Whilst the last stated consideration is certainly a matter proper to be taken into account, it is not the sole consideration to inform the Court's decision.

The mother has therefore established an error of principle in the approach taken by the primary judge. Allowing fully for the legal inhibitions which restrained the Full Court from disturbing a decision as to the residence of the child, that Court ought to have found that the approach, which resulted in the inhibitory injunction of which the mother complained, was affected by error. It was not her obligation to show "compelling reasons" to alter the residence of the child.

Any such alteration, with its practical consequences for the access to, and contact with, the father necessarily required a reconsideration of the issue of the residence of the child on the footing that the mother was to relocate to the Northern Territory. It required consideration in that context, of the acceptability of the alternative proposals which she advanced for different, but longer, periods of contact between the child and the father. If this was not judged satisfactory, it possibly necessitated consideration of whether a different regime, devised by the Family Court, would adequately fulfil the child's rights to regular contact with his father although no longer living permanently in close physical proximity. If such arrangements were still judged insufficient for the welfare of the child, that might necessitate, despite the life-long role of the mother as the primary care-giver, reconsideration of the entire issue of custody (or residence) and whether some joint arrangement was not appropriate. But simply to compel the mother, against her wishes, effectively to remain in the Perth metropolitan area, and to oblige her to conform to that requirement by an unlimited injunction, because her reasons for relocation were not regarded as "compelling" amounted to an erroneous exercise of the primary judge's discretion. It ought to have been corrected by the Full Court. The mother's appeal must also be allowed.

These conclusions require that there be a retrial. A question arises as to the applicable law, given that FCA 1997 came into operation on 26 September 1998.

FCA 1997 repealed FCA 1975 [97] . However, transitional provisions were enacted [98] which affect these proceedings. By cl 6(2) of Sch 2 to FCA 1997, an order with respect to the custody of a child or the guardianship of a child which was immediately before the commencement day of the 1997 Act "still awaiting determination", must be determined as if it were an application for the corresponding order or orders under Pt 5 of FCA 1997. Because, in relation to the proceedings at the first trial, the discretions with respect to the custody and guardianship of the child miscarried, those issues are, in my view, to be treated, once the orders are set aside, as "still awaiting determination". Accordingly, on remitter to the Family Court of Western Australia, they would have to be determined in accordance with the new Act. This is unsurprising. It is the course which the father supported and the mother did not contest.

Although the father's appeal was confined to a challenge to the order of the Full Court disturbing the decision of the primary judge in relation to guardianship, it is inappropriate simply to restore that decision. It may, like the issue of access, be affected by the outcome of the reconsideration of the issues of parenting and residence under the new Act. There are inconveniences for the parties in having to start afresh under new legislation. However, that is the necessary consequence of the conclusion that the present proceedings miscarried and of the operation of the transitional provisions of FCA 1997 to proceedings remitted for retrial, as these proceedings must be.

I agree in the orders proposed by Gleeson CJ, McHugh and Gummow JJ.

For the reasons given by Gleeson CJ, McHugh and Gummow JJ, I agree that in this appeal (brought by the father) the application to revoke the grant of special leave should be refused, the appeal should be allowed and orders made in the terms their Honours propose.

The injunction granted by the Family Court of Western Australia (the State Family Court) restrained the mother from "changing the child's principal place of residence from the Perth metropolitan area". Because an order was made that the mother have sole custody of the child, the effect of the injunction was to prevent her moving her place of residence from Perth (at least for as long as she had custody of the child).

The father sought to support the injunction as an order that was made "hav[ing] regard to the welfare of the child as the paramount consideration" [99] . The mother contended that the primary judge's discretion had miscarried and that the Full Court of the Supreme Court of Western Australia should have set aside the order on that basis. She also contended that the order impermissibly burdened free intercourse between the Northern Territory and a State, contrary to s 49 of the Northern Territory (Self-Government) Act 1978 Cth (the Self-Government Act). It is convenient to deal with the discretionary issues separately from the constitutional issues presented by s 49 of the Self-Government Act.

The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." [100] Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.

Gibson, "Literary Minds and Judicial Style", New York University Law Review, vol 36 (1961) 915, at p 916.

Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.

The reasons for judgment of the primary judge in this matter must, therefore, be considered having regard to two matters. First, the father and mother had put forward competing proposals about the orders to be made. Secondly, at the start of the case the primary judge had been told by counsel for the father that "[t]here is really only one issue and that is where - or, which principal place of residence - will best serve the future welfare of this child". There were said to be three available choices - with the mother in Perth, with the father in Perth, or with the mother in Darwin or elsewhere in the Northern Territory.

Soon after being told this, the primary judge asked "if I decide that it is in the child's best interest that the child remain in Perth, what does the mother propose to do?" Counsel then appearing for the mother said that her client proposed to stay in Perth but that her case was that "it's a bona fide wish to move, and that she [the mother] genuinely believes that that is where her's and the child's best interests are served". This, then, is the context in which the reasons for judgment must be placed.

In his reasons the primary judge said that, subject to the welfare of the child being the paramount consideration, three questions should be asked: first, whether the application to remove the child is made bona fide, secondly, if the application is made bona fide, can the Court be reasonably satisfied that the custodian will comply with orders for access and other orders made to ensure the continuance of the relationship between the child and the non-custodian and, thirdly, what is the general effect upon the welfare of the child in granting or refusing the application? Having stated these questions (and noted that a custodial parent should be free to order his or her own life without interference from the other party or the Court) the primary judge went on, as he put it, "to examine closely the mother's reasons for wishing to move to Darwin". He considered the reasons proffered by the mother and concluded:

For all of the child's life he has had the benefit of considerable contact with each of his parents. Each of them has had considerable input into the child's upbringing. Although the child has always enjoyed a relationship with members of the extended families, since the mother has moved to Perth he has been brought up in an environment of close interaction with members of both extended families. From the point of view of the welfare of the child it seems to me that he has been in as an ideal situation as he could possibly be in given that his parents do not live together. It is my opinion that the welfare of the child would be better promoted by him continuing in that situation in the absence of any compelling reasons to the contrary. Accordingly, the mother's application for a release from her undertaking will be dismissed and an injunction will be made restraining her from removing the child from the Perth Metropolitan area. (Emphasis added.)

Even given the context to which I have earlier referred, I consider that the reasons of the primary judge reveal error. I accept that the reasons must be understood in the light of the particular course the trial took and, especially, the fact that the matter was presented as whether the child should live in Perth or in Darwin. Read as a whole, however, the reasons show that the primary judge considered the issue to be whether the mother had shown that she had a good (or good enough) reason for wanting to move to Darwin and that, the reason offered not being "compelling", the child should not be denied continuing frequent contact with his father and "an environment of close interaction with members of both extended families". In my view, that approach distorted the inquiry that was required.

Both the primary judge and the Full Court assumed that the Family Court Act 1975 WA (the 1975 State Act) applied to these proceedings [101] . (It is not necessary to consider the validity of this assumption. If, as I consider to be the case, the discretion of the primary judge miscarried and the appeal to the Full Court should have been allowed, the matter will have to go back for further hearing. Counsel for the mother submitted that, on the further hearing, the 1975 State Act would not apply and the provisions of Pt 5 of the Family Court Act 1997 WA (which are not materially different from the provisions of Pt VII of the Family Law Act 1975 Cth) would apply. Counsel for the father did not submit to the contrary.)

The 1975 State Act has since been repealed and replaced by the Family Court Act 1997 WA.

If the 1975 State Act did apply to the proceedings before the primary judge, it required that the Court have regard to the principles stated in s 28:

(1) The Court in the exercise of its non-federal jurisdiction shall in so far as those principles are capable of application to the case have regard to the following principles -

(a) the need to preserve and protect the institution of marriage as the union of man and woman to the exclusion of all others voluntarily entered into for life;

(b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of children;

(d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to the children of the marriage; and

(e) the effect of any order on the stability of the marriage and the welfare of the children of the marriage.

(2) In the exercise of its non-federal jurisdictions with respect to a child the Court shall have regard to the welfare of the child as the paramount consideration.

Some of those principles had no application to this dispute: the father and mother had never married. But if the 1975 State Act applied, s 28(2) required the Court to have regard to the welfare of the child as the paramount consideration.

The reference to the welfare of the child being the paramount consideration should not be misunderstood. It does not mean that the welfare of the child was the only consideration to which the Court should have regard. And the command of s 28(2) was not that the Court should apply a precept that, if applied to the facts, would govern the conduct of the parties; it was that the Court should accord a particular place to the welfare of the child in its assessment of what order should be made.

Section 36(a) of the 1975 State Act provided for applications "for an order with respect to the custody or guardianship of, access to, or welfare of, a child". The power of a court acting under that provision to make orders for the welfare of a child was very wide. The jurisdiction was, no doubt, similar in many respects to the parens patriae jurisdiction of the Court of Chancery [102] . Nevertheless, it may be doubted that this power permitted the making of any and every kind of order directed to a parent simply because it was thought that the child might benefit as a result. For example, it may be doubted that, based on a finding that a child would be better off if a custodial parent had a well paid job, a court could make an order that a parent stay in a particular form of employment rather than change jobs or cease work altogether, or take an educational course that would fit the parent for better paid work than he or she was then undertaking. It is, however, not necessary to explore, let alone attempt to define, the limits of this power.

Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 256, per Mason CJ, Dawson, Toohey and Gaudron JJ; P v P (1994) 181 CLR 583 at 598, per Mason CJ, Deane, Toohey and Gaudron JJ; at 615, per Brennan J; at 627, per Dawson J; at 632, per McHugh J; ZP v PS (1994) 181 CLR 639 at 646-647, per Mason CJ, Toohey and McHugh JJ; In re X (A Minor) [1975] Fam 47 at 61, per Sir John Pennycuick.

For present purposes, it is sufficient to say that the order that was sought was not an order directed to regulating where the mother was to live. It was an order regulating who would have custody of, and access to, the child, and on what terms.

To decide whether the exercise of discretion by the primary judge miscarried, it is necessary to identify what are the premises from which the Court was to proceed in deciding what order was to be made. Or to put the matter another way, what were the issues for decision? In particular, was the Court to assume that one parent will move his or her principal place of residence; was the Court to assume that this may happen; was the Court to decide whether it may happen?

An important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the Court to decide where the custodial parent may live: that decision is to be made by the parent.

Of course, the decision of a parent who is about to move and who seeks custody may well be affected (often it will be determined) by whether he or she will have custody of the child if that proposed move is carried out. And it is, then, not surprising that counsel for the mother told the primary judge (in effect) that if the mother's having custody of the child depended upon her staying in Perth then she would not move to Darwin. But that does notmean that the question for the Court is whether the mother is to be permitted to move to Darwin. And it does not mean that the question is whether the mother has shown a "good" or a "compelling" reason for wanting to move.

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Cases Cited (81)

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